Fulmer v. Northern Central Bank, 79-1534

• Decision Date: 13 August 1980
• Docket Number: No. 79-1534,79-1534
• Citation: 386 So.2d 856
• Parties: Elizabeth FULMER, as Personal Representative of the Estate of Clyde L. Fulmer, Deceased, Appellant, v. NORTHERN CENTRAL BANK et al., Appellees.
• Court: Florida District Court of Appeals

Page 856

386 So.2d 856

Elizabeth FULMER, as Personal Representative of the Estate of Clyde L. Fulmer, Deceased, Appellant, v. NORTHERN CENTRAL BANK et al., Appellees.

No. 79-1534.

District Court of Appeal of Florida, Second District.

Aug. 13, 1980.

Rehearing Denied Sept. 9, 1980.

Helen S. Hansel, St. Petersburg, for appellant.

Brian C. Harrington, Fisher & Sauls, St. Petersburg, for appellee Northern Central Bank.

DANAHY, Judge.

Appellant challenges an order of the trial judge dismissing with prejudice appellant's petition to set aside her decedent's inter vivos transfers of his assets. The largest such transfer was to appellee, a Pennsylvania bank, as trustee of an irrevocable trust situate in Pennsylvania which by its terms terminated at the decedent's death and became entirely distributable to two charitable organizations in Pennsylvania. Two other transfers were to charitable organizations in Florida, and a fourth transfer was to three minors who are residents of Tennessee.

Relying on the holding of the United States Supreme Court in Hanson v. Denckla, ¹ appellee moved to dismiss the petition on the ground that the trial court had no jurisdiction to adjudicate the validity of an inter vivos disposition in trust when the trustee, the trust assets, and the trust beneficiaries are all situate in another state. Notwithstanding that appellee's objection pertained to only one of the four transfers attacked in appellant's petition, the trial judge dismissed the entire petition. In doing so, he added the words "with prejudice." We hold that the trial judge correctly dismissed the petition insofar as the inter vivos trust is concerned, though not for the reason asserted by appellee. We further hold, however, that the dismissal should not have been with prejudice and should not have extended to any claims in the petition except the claim against appellee.

Since appellee entered a general appearance in this case before raising the issue of jurisdiction, ² its argument that the Florida court could not acquire personal jurisdiction of appellee under the holding in Hanson v. Denckla, though valid, is of no avail. ³ Personal jurisdiction of appellee, however, is not enough in this case; Florida has long followed the rule that the beneficiaries of a trust are indispensable parties to a suit having the termination of the beneficiaries' interest as its ultimate goal. E. g., Byers v. Beddow, 106 Fla. 166, 142 So. 894 (1932). Since the beneficiaries of the inter vivos trust in this case are organizations in Pennsylvania who are not before the court and cannot be brought before the court, appellant's petition with respect to the trust was subject to dismissal for failure to join indispensable parties. Martinez v. Balbin, 76 So.2d 488 (Fla. 1954). That defense may be asserted in a motion to dismiss. Fla.R.Civ.P. 1.140(b). A dismissal on this basis, however, does not operate as an adjudication on the merits. Fla.R.Civ.P. 1.420(b). It is improper, therefore, to designate such a dismissal as being "with prejudice."

With respect to the inter vivos transfers attacked in the petition other than the trust, the trial judge had before him no grounds for dismissal and none had been asserted by the...